Date: 20130604
Docket: T-1423-12
Citation: 2013 FC 595
Ottawa, Ontario, June 4, 2013
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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PATRICK
WHITTY
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
AS
REPRESENTED BY
THE MINISTER
OF THE ENVIRONMENT
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
Mr. Patrick Whitty, the Applicant, requested information
from Environment Canada (EC) regarding himself and his three companies: RPR
Environmental Inc.; 1049585 Ontario Inc., o/a RPR Environmental Services; and
876947 Ontario Ltd., o/a RPR Environmental. In this application for judicial
review, Mr. Whitty states that he is seeking:
1.
An order for EC to comply with its obligations under the Access
to Information Act, RSC 1985, c A-1 [ATIA or the Act]; and
2.
A writ of mandamus requiring EC to send the Applicant a
complete copy of his personal information recorded on the National Enforcement
Management Information System (NEMISIS) and a complete copy of a specific
document the Applicant initially requested.
[2]
The problem with this application is that Mr. Whitty
has not met the statutory pre-conditions for bringing an application to this
Court. Therefore, the judicial review must be dismissed.
[3]
The history of Mr. Whitty’s requests to EC for
information and his complaints to the Office of the Information Commissioner
(OIC) is lengthy. The more important steps in the process are described below.
The 2009 Request
[4]
Sometime prior to November 2009, Mr. Whitty submitted
his first request under the ATIA. He asked for documents relating
to “alleged breaches of any applicable law” by himself and his companies in the
possession or control of the Public Prosecution Service of Canada or EC.
[5]
EC answered this request in November 2009. Some information
was withheld by EC in accordance with certain enumerated sections of the ATIA.
Of particular concern to Mr. Whitty, EC redacted the name of an individual
referenced in an e-mail dated February 5, 2009 (the Specific Document). The
Specific Document related to a personal profile in NEMISIS to which an
investigator wished to add information.
The 2011 Request
[6]
In a second request to EC (the 2011 Request), Mr. Whitty
asked for an extensive list of material, including, but not limited to, an
un-redacted copy of the Specific Document:
This request is for documents of
any kind relating or referring to myself . . . and my companies . . . that is
contained in Environment Canada’s National Enforcement Management Information System, also known as NEMISIS.
Without limiting the generality
of the word “documents”, my request is intended to include all drafts and final
copies of: records, letters, notes, investigator’s notebooks, affidavits,
briefs, complaints, reports, information used to obtain search warrants,
e-mails (including deleted e-mails), faxes, directives and memoranda, and
communications with legal counsel, whether in printed or computer-stored form,
as well as audio and videotapes and photographs.
I also request access to a
specific document that was previously released to me as per your enclosed
letter of November 20, 2009. This specific document . . . has an individual’s
name redacted. I have reason to believe that I am the individual that was named
in this e-mail. If so, I request immediate release of this specific document to
me, without redaction and without waiting for any other information to be
compiled.
First Complaint to the OIC
[7]
The statutory due date for EC’s response to the 2011
Request was July 2, 2011. On June 30, 2011, EC issued a “notice of
extension” advising that the department would require a 200-day extension (to
January 18, 2012) to complete the request. On August 4, 2011, Mr. Whitty
complained to the OIC about the time extension. This complaint was assigned
File No. 3211‑00503. In a response dated October 27, 2011 (the
Extension Report), the OIC advised Mr. Whitty that the extension was
“valid” and “reasonable”.
Second Complaint to the OIC
[8]
On March 20, 2012, Mr. Whitty complained to the OIC
about the delay which had now extended well beyond the 200-day extension. The
OIC assigned file number 3212-00017 to this complaint.
[9]
On March 30, 2012, EC responded to Mr. Whitty’s 2011 ATIA
Request (the March 30 Response). Of particular concern to Mr. Whitty
is the redaction in the Specific Document; EC had not, as requested by Mr. Whitty,
removed the redaction of a name from this document.
[10]
In a letter dated June 14, 2012 (the Delay Report), the OIC
responded to the March 20, 2012 complaint. The OIC acknowledged that the late
response had placed EC “in a state of deemed refusal pursuant to subsection
10(3) of the Act”. However since EC responded on March 30, 2012, the OIC
simply recorded the complaint “as well founded, resolved without having made
recommendations to the head of the institution”.
[11]
On July 23, 2012, Mr. Whitty commenced this
application for judicial review.
Third Complaint to the OIC
[12]
Although the record is somewhat muddy, I accept that Mr. Whitty
made a further complaint to the OIC in or around June 2012 (the Third
Complaint). In this complaint Mr. Whitty apparently alleged that:
Environment Canada has improperly applied exemptions, so as to unjustifiably deny access to records, or portions
thereof, requested under the Access to Information Act.
[13]
Of note, the Third Complaint marks the first instance
when Mr. Whitty complained to the OIC regarding improper redactions by EC
in its March 30 Response. The earlier complaints only addressed the issue of
EC’s delay. Further, it is also an important fact that Mr. Whitty’s Third
Complaint was not limited to the redactions in the Specific Document. In other
words, Mr. Whitty’s complaint extends to all 8000 pages of documents
provided by the EC to him. Accordingly, to adequately respond to the complaint,
the OIC must review each and every one of those 8000 pages.
[14]
The OIC has begun – but not completed – an investigation of
the Third Complaint. On June 20, 2012, the OIC sent a document to EC titled
“Notice of Intention to Investigate and Summary of Complaint”, pursuant to s.
32 of the ATIA. On June 21, 2012, EC forwarded in excess of 8,000 pages,
including a working copy of the records gathered by EC in response to Mr. Whitty’s
request, outlining the particular exemptions claimed by EC. On July 26, 2012, EC
was advised that the complaint had not yet been assigned to an investigator. A
further update was requested by EC on November 21, 2012, but no response was
received by the time the affidavit in the Respondent Record was sworn.
Analysis
[15]
I believe that Mr. Whitty is
somewhat confused as to what decision is reviewable before this Court. In fact,
Mr. Whitty cannot seek review of any alleged “decision” by the OIC; the OIC can only provide non-binding
recommendations (Canadian Council of Christian Charities v Canada (Minister
of Finance), [1999] 4 FC 245 at para 12, 168 FTR 49). What Mr. Whitty is really asking for is a decision of
this Court to force the EC to disclose information to which he was entitled
under the ATIA. On this basis, the relevant decision is the March 30
Response by EC.
[16]
The
problem for Mr. Whitty is that investigation by the OIC is
necessary prior to the commencement of a judicial review application (Statham v Canadian Broadcasting Corp, 2009 FC 1028
at para 18, [2010] 4 FCR 216, aff’d 2010 FCA 315, [2012] 2 FCR 421). Section 41
of the ATIA sets out the conditions precedent for judicial review under
the ATIA:
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41. 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.
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41. La personne qui s’est vu refuser communication totale
ou partielle d’un document demandé en vertu de la présente loi et qui a
déposé ou fait déposer une plainte à ce sujet devant le Commissaire à
l’information peut, dans un délai de quarante-cinq jours suivant le compte
rendu du Commissaire prévu au paragraphe 37(2), exercer un recours en
révision de la décision de refus devant la Cour. La Cour peut, avant ou après
l’expiration du délai, le proroger ou en autoriser la prorogation
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[17]
The requirement for a complaint to the OIC is clearly
stated in Canada (Information Commissioner of Canada) v Canada (Minister of National Defence) (1999), 240 NR 244 at para 27, [1999] FCJ
No 522 (CA):
The investigation the
Commissioner must conduct is the cornerstone of the access to information
system. It represents an informal method of resolving disputes in which the
Commissioner is vested not with the power to make decisions, but instead with
the power to make recommendations to the institution involved. The
importance of this investigation is reinforced by the fact that it constitutes
a condition precedent to the exercise of the power of review, as provided in
ss. 41 and 42 of the Act. [Emphasis added.]
[18]
Therefore, in this case, judicial review cannot be sought
without a report outlining the investigation of OIC of the relevant subject
matter.
[19]
Obviously, Mr. Whitty cannot seek judicial review on
the basis of the Extension Report since he is out of time.
[20]
In his oral submissions, Mr. Whitty identified the
June 14, 2012 report regarding the Delay Complaint as the basis for his
judicial review application. However, the OIC’s investigation of this complaint
cannot satisfy the requirements for judicial review since it dealt with delay
and not the redactions. The complaint made by Mr. Whitty was only that EC
had breached the provisions of the ATIA by failing to respond to his
request by the extended deadline. The OIC properly answered Mr. Whitty’s
complaint of delay. The OIC concluded that, because EC had responded to the
request on March 30, 2012, nothing beyond an acknowledgment of the lengthy
delay was required. The fact that Mr. Whitty did not receive the documents
that he wanted was not an issue raised with the OIC at this time. Mr. Whitty
had only complained to the OIC about the delay and not about the redactions. In
my view, the OIC addressed the issue before it in a complete and reasonable
manner; however, this investigation cannot satisfy the conditions precedent to
commence this application for judicial review.
[21]
In sum, the only possible reviewable decision is the March
30 Response of EC. However, the problem for Mr. Whitty is that, in the
absence of a report from the OIC detailing its investigation of the Third
Complaint, the court is precluded from granting – or even considering – this
application for judicial review.
[22]
In the circumstances, the prerequisites for an application
for judicial review have not been met and the application will be dismissed,
with costs to the Respondent.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
costs fixed in the amount of $500, inclusive of
disbursements, are payable by the Applicant to the Respondent.
“Judith
A. Snider”
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