Docket: T-92-13
Citation: 2014 FC 205
Ottawa, Ontario, March 3,
2014
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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THE INFORMATION COMMISSIONER
OF CANADA
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Applicant
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and
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THE MINISTER OF NATIONAL DEFENCE
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This application for judicial review relates to
a request for records made on December 9, 2010 by a requester pursuant to the Access
to Information Act, RSC 1985, c A-1 (the “Act”). The requester sought information
from the Department of National Defence [“DND”]. The Minister of National
Defence claimed that an extension of time of more than three years was needed
to provide the records.
[2]
The applicant, the Information Commissioner of Canada, now seeks a declaration that the respondent, the Minister of National Defence, has
failed to give access to the records requested under the Act within the time
limits set out in the Act and is, therefore, deemed to have refused to give
access to the requested information. The applicant submits that the extension
of time claimed by the respondent was not reasonable and is invalid; as a
result, the respondent did not comply with the requirement to provide the
records within the statutory time period of 30 days and this amounts to a
deemed refusal. The applicant also seeks an order directing the respondent to
respond to the request and provide the requested records within 30 days of this
judgment, subject to exemptions under the Act.
[3]
On September 11, 2013 the respondent provided
the applicant with the requested records, with some redactions. The respondent
then brought a motion to strike the application on the grounds that it is now moot.
[4]
The applicant submits that the application is not
moot and alternatively, if it is technically moot because the requested records
have recently been provided, the relief sought in the application should still
be considered because a determination of the issue will guide the conduct of the
Department of National Defence and other Government institutions in the future
with respect to claimed extensions of time.
[5]
This application raises important issues about
the access to information regime including the challenges that arise in
respecting the rights of those who seek access and are entitled to access,
subject to the permitted exemptions, and the operational and other obligations
of Government departments that must gather, assess, consult, redact and
ultimately provide the records. Moreover, the applicant seeks a remedy in this
Court which is not currently provided in the legislation.
[6]
To balance these considerations, the Act allows
Government departments to claim an extension of time to provide the requested
records. This application highlights that there will be situations where
Government departments claim extensions of time that appear to be completely
unreasonable and excessive, that do not meet the needs of the requester, and
that defeat the overall goals of the Act. However, the Information
Commissioner’s powers to encourage compliance with the provisions and overall
goals of the Act are limited to recommendations and reports to heads of
departments, which may do little to address the concerns of the individual
requester seeking speedy access to information.
[7]
The remedies sought by the Information
Commissioner raise policy issues that should be addressed by the Government
with the input of relevant stakeholders. Any decision by this Court in the
context of this application would have broader implications government-wide and
the Court should be wary of determining such issues without the input of those
that would be affected.
[8]
For the reasons provided below, the Court will
exercise its discretion to hear the application. However, the applicant can not
obtain the relief she seeks on this application and the application must be
dismissed. Despite this outcome, the applicant has effectively highlighted that
the remedies for non-compliance with the Act are limited and that legislative
change would be the only way to provide more options and remedies.
The Background
[9]
On December 9, 2010, a requester sought access
to records from DND regarding a DND contract involving Smith Consulting Group [“SCG”],
Billy P. Smith, and the sale of surplus military assets to Uruguay.
[10]
On February 3, 2011, pursuant to correspondence
from DND, Mr Smith and SCG provided their consent to the release of personal and
third party information to the requester, who was their lawyer.
[11]
On March 4, 2011, DND informed the requester
that:
•
Fees would be charged for processing the request
and that the request would not be processed until such time as the requester
confirmed his continued interest in obtaining the records and paid a deposit of
50% of the estimated fee, about $250.
•
It would claim an extension of time of 1,110
days – three years and 15 days – beyond the initial statutory time limit of
responding to the request, “due to the volume of records” (section 9(1)(a) of
the Act) and to “complete the necessary consultations” (section 9(1)(b) of the
Act). After this time extension, DND’s due date for responding to the request
would be on or about March 19, 2014.
[12]
On March 11, 2011, the requester paid the
deposit and informed DND by letter that it intended to file a complaint with
the Information Commissioner regarding the 1,110 day extension.
[13]
On March 29, 2011, the Information Commissioner provided
notice of her intention to investigate. During the course of investigation, DND
provided further details on the time extension: a 230-day extension was claimed
pursuant to paragraph 9(1)(a) of the Act due to the large number of records
involved, and a 880-day extension was claimed pursuant to paragraph 9(1)(b) of
the Act to complete the necessary consultations.
[14]
By March 30, 2012, DND had not begun its
consultations with other government institutions.
[15]
In May 2012, the applicant sought and obtained
written representations from DND regarding DND’s extension of time. The
Director of Access to Information and Privacy of DND (the “ATIP Director”) responded
with the following information:
•
after an initial review, 1000 pages of duplicate
information were removed leaving 2400 pages to be reviewed and consulted;
•
with respect to the subsection 4(2.1) of the Act
(i.e. the Duty to Assist), the provision of timely access is based on what is
reasonable in the circumstances. In these circumstances, DND had the discretion
to determine the length of the extension (Canada, Treasury Board Secretariat, Directive
on the Administration of the Access to Information Act, at Appendix
C “Principles for assisting applicants”);
•
in estimating the length of an extension, DND
undergoes an initial review of the documents and considers many possible
variables, including previous experiences, sensitivity of the information and
current workload;
•
part of the file needed to be reviewed by the
Department of Foreign Affairs and International Trade [“DFAIT”] and Public
Works and Government Services Canada [“PWGSC”], and that the DFAIT review could
potentially involve mandatory consultation with foreign governments;
•
DND had consulted with the Department of Justice
[“DOJ”] and was told that the whole file needed to be reviewed for matters
regarding solicitor-client and litigation privilege; and
•
DND’s access to information unit had experienced
a major and unprecedented software malfunction.
[16]
DND sent the relevant records to other
departments for consultation on July 9, 2012. DOJ and PWGSC responded by August
15, 2012, sooner than DND had anticipated. DFAIT responded by August 31, 2012,
indicating that it would require a further 120 days to respond, that is, until
November 2012.
[17]
On October 18, 2012, the applicant wrote to the
respondent to report the results of her investigation. The applicant informed
the respondent that DND had failed to meet its duty to assist, as set out in
subsection 4(2.1) of the Act, and particularly that it had not made every
effort to process the request in a timely manner. The applicant also found that
DND had not provided justification for the claimed extensions of time; in so
doing, the applicant found that the second criteria set out in paragraph
9(1)(a) of the Act was not met. Moreover, the applicant found that DND had not
provided any explanation for the discrepancy between the initial estimate (880
days) and actual time required (approximately 160 days) for the consultation.
[18]
The applicant advised the respondent that the
extensions of time had not been justified; the extension sought under paragraph
9(1)(a) had not been met and the extension of 880 days sought under 9(1)(b) was
not reasonable and both were therefore invalid. The applicant concluded that
because the extensions were not valid, the response date remained March 4,
2011, which was the statutory time period to respond of 30 days, and since no
response had been received at that time, DND was in a state of deemed refusal.
[19]
The applicant recommended that the respondent commit
to respond to the request by no later than February 28, 2013, 90 days after
DFAIT was expected to respond to the consultation request.
[20]
On November 6, 2012, the ATIP Director informed the
applicant that DND could not commit to adhere to the applicant’s
recommendations because the requisite consultations were external and beyond
its control, but promised to make every effort to provide the records by that
date. The ATIP Director also noted that DND takes its responsibilities under
the Act very seriously.
[21]
On December 18, 2012, the requester authorized
the applicant to initiate an application for review to the Federal Court
pursuant to paragraph 42(1)(a) of the Act.
The Remedy
sought by the Information Commissioner
[22]
The applicant seeks:
•
A Declaration that the respondent has failed to
give access to the requested records within the time limits set out in the Act
and is therefore deemed to have refused to give access to the requested information;
and,
•
An Order directing the respondent to respond to
the request within 30 days of judgment.
[23]
The applicant agrees that because the documents
were provided on September 11, 2013, the Order directing the respondent to
provide the documents is moot, but submits that the issue of the declaratory
relief is not moot.
The
preliminary issue: Iis the application moot?
[24]
On September 26, 2013, the respondent filed its
motion to dismiss the application on the ground that it is moot.
[25]
The respondent submits that because DND has
provided the records requested with some exemptions, the factual foundation for
the litigation has disappeared and that there is no longer a live controversy
between the parties. The respondent further submits that there are no special
circumstances which would justify the Court exercising its discretion to hear
the application.
[26]
The respondent submits that the test established
in Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342, 57 DLR (4th)
231 [Borowski] has not been met.
[27]
The respondent notes that there is no ongoing
refusal of access because the requested documents have been provided. The
respondent also submits that there is no live controversy between the parties
because the only complaint made by the requester and investigated by the
Information Commissioner [IC] was about the claimed extension of time, which is
not reviewable under the Act. The issue of declaratory relief, which the
respondent submits is not a justiciable issue, does not re-establish a live
controversy between the parties. The respondent argues that the declaration
sought by the IC will have no practical effect for the requester because the
requester has now received the records.
[28]
In addition, the respondent submits that the
declaratory relief would stray into matters that should be addressed by
legislators and the Court should avoid such intrusion, particularly on moot
issues.
[29]
The respondent argues that only refusals to
provide the records are reviewable by this Court not claimed extensions of
time. Complaints regarding claimed extensions of time may result in reports to
Ministers and recommendations for timely compliance – but that is as far as the
legislation goes.
[30]
The respondent argues that the Information
Commissioner’s interest in pursuing this application has little to do with the
requester’s interests but focuses on institutional interests. The respondent
questions whether this is a proper use of the judicial review power, noting
that section 42 requires the consent of the requester for judicial review and
such consent does not permit the requester to raise hypothetical issues. Rather
such issues, which may also engage the interests of other intervenors, would be
better addressed in a reference to the Court pursuant to section 18.3 of the Federal
Courts Act. The respondent suggests that this is a disguised reference
case by the applicant with the goal of inviting the Court to redraft or
reinterpret the statutory provisions and that the applicant should have brought
a reference pursuant to section 18.3.
[31]
The applicant, responding to the motion for
mootness, submits that the issues she has raised in the application must be
fully considered to provide the context to determine if the issues are moot,
and if they are found to be moot, to determine whether the Court should
exercise its discretion to hear the application.
[32]
The applicant frames the issues as: what
constitutes an unreasonable extension of time; whether an unreasonable
extension can give rise to a deemed refusal; whether judicial review pursuant to
sections 41 or 42 of the Act can be taken of an unreasonable extension of time
before that claimed extension has lapsed; and, what is the scope of the
respondent’s duty to assist as it relates to the timeliness of responses to
access to information requests.
[33]
The applicant submits that the two-step approach
and the factors established in Borowski support hearing the application:
the Court must determine if a concrete dispute has ceased to exist and if the
dispute has ceased to exist, the Court must consider whether to exercise its
discretion to hear the application.
[34]
The applicant agrees that part of the relief
requested is moot since the requester has now received the records. However, a
declaration of whether the records were provided in compliance with the Act and
whether the claimed extension of time was unreasonable and, therefore, invalid
and, as a result, constituted a deemed refusal, would have a practical effect
on this case and in future cases.
[35]
Alternatively, the applicant argues that even if
the application for declaratory relief is moot, the Court should exercise its
discretion to hear the application. The applicant submits that there is a
sufficient adversarial context, as both the applicant and respondent have fully
argued all the relevant issues and will continue to have an ongoing interest in
these issues, given that access to information requests will continue to be
made to the respondent, as well as to other departments and agencies. As these
issues are bound to recur and their resolution will have a practical effect on
the rights of requesters, they are issues of public importance. Moreover, the
resolution of these issues is important to the effective functioning of the
access to information system as a whole.
[36]
The applicant emphasizes that if the Court does
not exercise its discretion to hear the application, the requester in this
case, and other requesters in similar circumstances, who allege that their
right to timely access under the Act is infringed, will be denied an effective
remedy. The applicant notes that the Act permits the responding Government
institution to control the timing of the response, i.e. to set the time
extension. Even though the requester in the present case has now received the
sought after records, he has been denied timely access.
[37]
The applicant further submits that these issues
are evasive of review. Where the Commissioner investigates a complaint about an
unreasonable extension of time and then seeks judicial review, the records may
be provided before the judicial review is heard. Although the requester may
ultimately receive the requested records, the requester is denied timely access
and has no recourse. If the Court does not hear this application, DND and other
departments could continue to claim long extensions of time, contrary to the
spirit of the Act and, in particular, section 9 of the Act, without any
opportunity for the Court to review the validity of such extensions.
[38]
With respect to the respondent’s argument that
the Court does not have jurisdiction to review an extension of time until that
extension has lapsed and has resulted in a deemed refusal, the applicant notes
that this is the central issue and argues that the jurisprudence has been
inconsistent and that the issue should be resolved.
[39]
The applicant also submits that the application
raises issues of statutory interpretation which are appropriate for the Court
to deal with.
The Court
will exercise its discretion to hear the application
[40]
As noted in the chronology, the requester has
waited a long time to receive the records.
[41]
The requester filed his request in December 2010
and, after some communications regarding the fees required, DND acknowledged
the request in February 2011. In March 2011, DND claimed an extension of time
of three years and 15 days to provide the records. The requester then
complained to the applicant. The applicant investigated and reported to the
respondent in October 2012, however, the respondent could not commit to adhere
to the recommendations and to provide the requested records by the date
recommended, February, 28, 2013. As a result, the applicant sought judicial
review. Memoranda of Law were drafted and filed and the judicial review was
scheduled. Less than a month before the scheduled hearing date, the respondent
provided the records. Less than two weeks before the scheduled hearing date the
respondent brought its motion to strike the application. Should the compliance
of the respondent at this late day render the application moot?
[42]
If the Court has the jurisdiction to consider
deemed refusals based on unreasonable extensions of time claimed by Government
departments, that remedy would be thwarted by departments that provide the
requested records at any time up to the eve of the hearing date and then assert
mootness on the application for judicial review.
[43]
Both parties agree that the test for determining
mootness is established by the Supreme Court of Canada in Borowski at
para 15, “[t]he general principle applies when the decision of the court will
not have the effect of resolving some controversy which affects or may affect
the rights of the parties. If the decision of the court will have no practical
effect on such rights, the court will decline to decide the case.” The Supreme
Court noted that, if after the commencement of the proceeding, “events occur
which affect the relationship of the parties so that no present live
controversy exists which affects the rights of the parties, the case is said to
be moot.”
[44]
The Supreme Court set out a two-step approach to
determine whether a case is moot. First, the Court must determine whether the
required tangible and concrete dispute has disappeared and the issues have
become hypothetical or academic. If so, then the Court must determine whether,
despite that the dispute has disappeared, or despite the lack of a “live
controversy”, it should exercise its discretion to hear the case. The Court
also set out the factors to be considered in determining whether to exercise
the discretion; an adversarial context; concern for judicial economy and the
conservation of judicial resources; and, the need
of the Court to respect its role as the adjudicative branch and not stray into
the role of the legislative branch.
[45]
In Ficek v Canada (Attorney General), 2013
FC 430, 2013 DTC 5115 [Ficek], Justice Phelan found that the Court
should exercise its discretion in favour of hearing the application where the
issues raised would otherwise be evasive of review. Many of the considerations
in Ficek, supra at paras 13-16, 20-21, 29, are relevant to the
present circumstances:
[13] However, the
situation in which the Applicant finds herself is one which can happen often
and in many different situations. An applicant claims that the government has
breached the law, and the applicant has been affected by such breach. Prior to
the matter being adjudicated or post- adjudication but prior to a court
decision, government rectifies the breach and then claims that the dispute is
moot. Whatever rights an applicant may have had have been trammelled, but no
remedy is available.
[14] This situation
facing this Applicant is slightly more complicated because there is the real
prospect of future harm as assessments will be due for other years and there is
no indication that the policy at issue has or will be changed. While the past
alleged wrong is over, a future wrong may occur.
[15] In my view,
these circumstances do not make the controversy less moot or more alive. The
proper place for considerations of this nature are in the second prong of the Borowski
test – the exercise of the Court’s discretion.
A
similar view, expressed in the context of a tax case where at the time of
hearing the debt was paid and the liens lifted, occurred in Danada
Enterprises Ltd v Canada (Attorney General), 2012 FC 403, 407 FTR 268.
[16] The live
controversy about the interpretation and application of the assessment powers
for the 2010 tax year, which is at the heart of the dispute, is academic,
particularly as the declaratory relief was an adjunct to the principal relief
of mandamus.
[…]
[20] With
regard to the second criterion, that of judicial economy, three factors are
relevant, as discussed in Borowski:
•
is the issue sensitive and evasive of review?
•
would the “social cost” of leaving an issue of
public or national importance undecided justify the Court’s intervention?
•
would a decision have some practical effect on
the rights of the parties even though it would have no effect on the now moot
controversy that led to the litigation?
[21] The issue is
certainly sensitive and has broad impact. It has shown itself to be evasive of
review. As referred to earlier by the Court, review after the offending conduct
has stopped becomes difficult because it allows the “offending” party to cure
and avoid judicial scrutiny.
[…]
[29] The
final criterion – the role of the Court – is one to which the Court is
sensitive. The Respondent’s suggestion that it is not for the Court to go about
issuing legal opinions ignores the Court’s role in this case which is to engage
in statutory interpretation on a given set of facts. There is no issue of the
Court straying into areas of executive or legislative policy. However, if the
Applicant is correct, a local office fiat could run counter to the legislated
duty of the Minister to assess “with all due dispatch”.
[46]
The factors set out in Borowski, when
applied to the circumstances of this case, favour the Court exercising its
discretion to hear the application.
[47]
One part of the application is clearly moot
since the records have been provided. However, other issues remain live,
particularly whether a claimed extension of time can be found to be
unreasonable and, therefore, invalid, leading to a deemed refusal which can
then be judicially reviewed. While the resolution of these issues may not have
a practical effect on the parties to this application, and to that extent,
could be considered moot, they will have a practical effect on other requesters
and the respondent, as well as other Government departments and agencies in the
future. Regardless, there is justification for the Court to exercise its
discretion to hear the application.
[48]
As in Ficek, if the Court does not hear
the application, the issues raised are evasive of review. The respondent may
have made its best efforts to provide the requested records as soon as
possible, as it promised to do in its response to the applicant in November
2012. But the reality is that the records were delivered shortly before the
hearing date and the motion to strike the application on the grounds of mootness
was made less than two weeks before the hearing date. From the perspective of
the requester, he did not receive the records in a “timely’ manner; not in the
time frame he may have desired or needed for whatever purpose the records were
sought.
[49]
The motion can not be considered in a vacuum.
The Court has considered the issues raised by the parties in the application.
The parties have fully argued all the issues in both the motion to strike the
application and the application itself. As a result, the concern for judicial
resources is to some extent theoretical given that judicial resources have
already been expended. It would seem to be more of a waste of resources to not
consider the application at this stage.
[50]
I also agree with the applicant that the issues
are likely to arise again and that these are important issues to highlight how
to give effect to the spirit of the access to information regime. Certainly,
these are not new issues and, although the applicant suggests that the law is
not settled, the Court has consistently addressed its limited jurisdiction to
review true refusals.
[51]
The resolution of the issues, to the extent it
adds to the jurisprudence, will have some practical effect and justifies the
Court’s consideration.
[52]
There is no risk that the Court will stray into
areas reserved for Parliament. The issues are primarily about statutory
interpretation. While the applicant may invite the Court to interpret the
provisions broadly to expand the powers of the Information Commissioner, any
statutory changes must come from Parliament. The Court cannot redraft the
legislation.
[53]
Finally, I do not agree with the respondent’s
argument that, in determining whether the application is moot, the Court should
consider whether the applicant should have brought a reference to the Court
pursuant to section 18.3 of the Federal Courts Act rather than an
application for judicial review.
[54]
Section 18.3 provides:
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18.3 (1) A
federal board, commission or other tribunal may at any stage of its
proceedings refer any question or issue of law, of jurisdiction or of
practice and procedure to the Federal Court for hearing and determination.
(2) The Attorney General of Canada
may, at any stage of the proceedings of a federal board, commission or other
tribunal, other than a service tribunal within the meaning of the National
Defence Act, refer any question or issue of the constitutional validity,
applicability or operability of an Act of Parliament or of regulations made
under an Act of Parliament to the Federal Court for hearing and
determination.
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18.3 (1) Les offices fédéraux peuvent,
à tout stade de leurs procédures, renvoyer devant la Cour fédérale pour
audition et jugement toute question de droit, de compétence ou de pratique et
procédure.
(2) Le procureur général du Canada
peut, à tout stade des procédures d’un office fédéral, sauf s’il s’agit d’un
tribunal militaire au sens de la Loi sur la défense nationale, renvoyer
devant la Cour fédérale pour audition et jugement toute question portant sur
la validité, l’applicabilité ou l’effet, sur le plan constitutionnel, d’une
loi fédérale ou de ses textes d’application.
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[55]
The respondent contends that a reference
pursuant to section 18.3 is a preferable approach to address the issues that
the applicant has raised in her application, particularly regarding the
declaratory relief sought. However, this argument was not raised in the
respondent’s written submissions and understandably put the applicant at a
disadvantage with respect to a reply. I also note that the respondent did not cite
any case law regarding the reference power.
[56]
With respect to the applicant’s choice of
procedure, it must be remembered that the applicant launched the application
many months before the requested records were provided. The respondent has only
raised the notion of a reference at the oral hearing.
[57]
Moreover, the respondent’s assertion of section
18.3 as the better approach is not an answer, in the present circumstances, to
whether the Court should exercise its discretion to hear the application. As
explored in detail below, whether as a reference or an application, the issues
raised by the parties are policy issues that may require legislative change,
which is the domain of Parliament. In addition, the respondent has not provided
any guidance to the Court about whether such issues would even be appropriate
for a reference or whether the respondent would support that approach if it
were pursued in the future.
[58]
The Court has, therefore, considered the
application on its merits.
The Issues
[59]
The applicant seeks a declaration that the
respondent has failed to provide access to the requested records within the
time limits set out in the Act and is deemed to have refused access. The
applicant’s request for an Order directing the respondent to respond to the
request and to provide the records within 30 days of the judgment is now moot.
[60]
The key issues are:
1. Whether the Court has
jurisdiction pursuant to section 42 to hear this application? and,
2. If
so, whether the claimed extension of time was reasonable?
[61]
To reiterate, the applicant has raised several
underlying issues: what constitutes an unreasonable extension of time; can an
unreasonable extension constitute a deemed refusal; can judicial review
pursuant to sections 41 or 42 be taken of an unreasonable extension of time (as
found by the Information Commissioner) before that claimed extension has
lapsed; and, what is the scope of the respondent’s duty to assist as it relates
to the timeliness of responses to access to information requests.
The Access to
Information Regime
[62]
The relevant provisions of the Act are set out in
the Annex but are summarized here for context.
[63]
The Act sets out its purpose in section 2.
Section 6 governs how requests for records shall be made.
[64]
Under section 7 of the Act, the head of the
government institution to which the request is made has, subject to sections
8-10, 30 days after the request is received to give notice to the requester
whether or not access to the record, or part thereof, will be given and if so,
to provide the records.
[65]
Section 9 of the Act allows the head of a Government
institution to extend the time limit set out in section 7 “for a reasonable
period of time, having regard to the circumstances” if there are a large number
of records and if meeting the 30 day initial time limit would interfere with
the operations of the department, or if consultations are required which cannot
be completed within that period, or if notice of the request is required to be
given to a third party pursuant to subsection 27(1).
[66]
Section 10 governs refusals to give access to the
records and subsection 10(3) provides that where the records are not provided
within the time limits set out in this act, the head of the institution is
deemed to have refused to give access. In other words, where there is no
outright notice of refusal, if the requested records are not provided within 30
days or within the period of time claimed as an extension under section 9,
there is a deemed refusal.
[67]
Section 30 governs complaints, i.e. who can bring a
complaint and on what grounds.
[68]
Sections 32-36 govern investigations by the
Information Commissioner, including the requirements to notify the Government
institution, determine its procedure, the privacy of complaints, and the
opportunity for those affected to make submissions.
[69]
Section 37 sets out the powers of the Information
Commissioner regarding the results or findings of its investigation. The
Information Commissioner may report her findings to the Government institution,
make recommendations, and request a response. She must also report to the
requester and provide the requester’s response of the impugned Government
institution.
[70]
Section 38 requires the Information Commissioner to
provide an Annual Report to Parliament. The Information Commissioner may also
submit Special Reports pursuant to section 39 on matters within the scope of
its powers, particularly on matters of importance that should not wait until
the next Annual Report to be highlighted.
[71]
Sections 41 and 42 provide that the requester who
has been refused access or the Information Commissioner, following an
investigation, may apply to the Court for review of a refusal.
[72]
In 2006, the Act was amended to add subsection
4(2.1) to impose a duty on the head of the institution to assist a requester,
including to provide “timely” access to the requested record.
[73]
The Information Commissioner has no authority to
make any orders.
[74]
For example, the Information Commissioner has no
authority to "cure" a deemed refusal of access by granting any
extension of time to a Government institution to respond to an access request.
As the Court held in Statham v Canadian Broadcasting Corporation, 2010
FCA 315 at para 49, [2012] 2 FCR 421:
49 To conclude on
this point, the Act confers no authority on the Commissioner to
"cure" a deemed refusal of access by granting any extension of time
to a government institution to respond to an access request.
[75]
Judicial review is the only way the Information
Commissioner can encourage compliance and is limited to refusals to disclose or
to provide access to a requested record.
Interpreting
the Act
[76]
The applicant submits that timely access is an
important overarching principle of the Act which can be ignored or thwarted if
the head of the Government department may claim an extension of time of no
matter what length, unless there is jurisdiction in this Court to review the
reasonableness of that extension or to find that it is invalid and constitutes
a deemed refusal.
[77]
The applicant submits that the Act is to be
given a liberal and purposive interpretation. The applicant notes the jurisprudence
that has established the quasi-constitutional nature of the right of access to
information, given that the right enables citizens to have the information
required to participate meaningfully in the democratic process (Canada
(Information Commissioner) v Canada (Minister of National Defence), 2011
SCC 25 at para 40, [2011] 2 S.C.R. 306 [MND]; Ontario (Public Safety and
Security) v Criminal Lawyers' Association, 2010 SCC 23 at para 30, [2010] 1
SCR 815; Canada (Attorney General) v Canada (Information Commissioner),
2004 FC 431 at paras 19, 255 FTR 56).
[78]
The applicant submits, therefore, that where
there are two interpretations open to the Court, it must interpret the
provision in a manner that least infringes the public’s right to access (Rubin
v Canada (Minister of Transport), [1998] 2 FC 430 at para 23, 154 DLR (4th)
414 [Rubin]; Canada (Privacy Commissioner) v Canada (Labour Relations
Board), [1996] 3 FC 609 at para 47, 118 FTR 1 (FCTD)).
[79]
The respondent acknowledges the quasi-constitutional
nature of the Act but submits that it must be interpreted in accordance with
the usual principles of statutory interpretation (MND, supra at
para 40; Lavigne v Canada (Office of the Commissioner of Official Languages),
2002 SCC 53 at para 25, [2002] 2 S.C.R. 773).
The statutory
language is clear
[80]
I agree that the Act should be interpreted in
accordance with general principles of statutory interpretation. In MND, supra
at para 40, the Supreme Court stated:
40 […] While I agree that the Access to Information Act may
be considered quasi-constitutional in nature, thus highlighting its important
purpose, this does not alter the general principles of statutory
interpretation. The fundamental difficulty with the Commissioner's approach to
the interpretation of the term "government institution" is that she
avoids any direct reference to the legislative provision at issue. The Court
cannot disregard the actual words chosen by Parliament and rewrite the
legislation to accord with its own view of how the legislative purpose could be
better promoted.
[81]
If the language of a statute permits more than
one interpretation, the Court will choose the interpretation that least infringes
on the right to access to information (Rubin, supra at para 23). However,
the Court must respect the language of the Act and cannot redraft or
reinterpret the provisions to reach its own view of how the purpose could be
better served.
[82]
In Rubin, supra at paras 24, the
Court considered the nature of an exemption under the Act and remarked that:
It is important to emphasize that this does not mean that the Court
is to re-draft the exemptions found in the Act in order to create more narrow
exemptions. A court must always work within the language it has been given. If
the meaning is plain, it is not for this Court, or any other court, to alter
it. Where, however, there is ambiguity within a section, that is, it is open to
two interpretations (as paragraph 16(1)(c) is here), then this Court must,
given the presence of section 2, choose the interpretation that infringes on
the public's stated right to access to information contained in section4 of the
Act the least.
[83]
This reflects the oft cited principle that the
“words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes
Ltd (Re), [1998] 1 S.C.R. 27 at para 21, 154 DLR (4th) 193). Section 2(1) sets
out the object of the Act as “to provide a right of access to information […] in
accordance with the principles that government information should be available
to the public […]”.
[84]
Section 4 addresses the right to access and now
includes a specific provision imposing a duty on the head of the institution to
“[…] make every reasonable effort to assist the person in connection with the
request […] and, subject to the regulations, provide timely access to the
record in the format requested.”
[85]
There is no definition of “timely” in the
Act. The Oxford Dictionary defines timely as “done or occurring at a favourable or useful time; opportune”. Such a
definition begs the question of timely from whose perspective.
[86]
The reference to
timely access does not create any ambiguities with other provisions of the Act
which would call for an interpretation of those provisions in a manner that
least infringes access. The provision for timely access is qualified by “make
every reasonable effort to…” What is timely will depend on what is reasonable in
the circumstances. The statutory language throughout the Act is clear and the
various provisions must be read to work together.
Does the Court have
Jurisdiction under Section 42 of the Act to Hear the Judicial Review?
[87]
The applicant’s position is that the Court has
jurisdiction because there is a deemed refusal to provide the records pursuant
to subsection 10(3) of the Act. The applicant submits that the jurisprudence is
inconsistent, but has not foreclosed the finding that an unreasonable extension
of time can be invalid and can constitute a deemed refusal.
[88]
The applicant referred to cases where courts
have found, or in the applicant’s view, were willing to find, a deemed refusal.
The applicant referred to Public Service Alliance of Canada v Canada (Attorney
General), 2011 FC 649 at para 23, 391 FTR 28 [PSAC], as an example
of the Court’s willingness to find that an extension of time could amount to a
deemed refusal, except in that case, the Crown did not concede that there had
been an unreasonable extension of time which amounted to a deemed refusal and
the Information Commissioner found the extension of time in issue to be
reasonable. The applicant submits that the present case can be distinguished
because the Information Commissioner found the claimed extension of time to be
unreasonable.
[89]
The applicant also relies on Canada (Information Commissioner) v Canada (Minister of External Affairs) (1988), 18
FTR 278, 32 Admin LR 265 (FC) and Canada (Information Commissioner) v
Canada (Minister of External Affairs), [1990] 3 FC 514, 3 TCT 5297 [collectively,
External Affairs]. In the first case, which dealt with an interlocutory
motion to dismiss the application, Associate Chief Justice Jerome noted at para
19, that “[w]here the application is based on an allegedly unauthorized
extension under s. 9 … it is inescapable that the Court must be able to review
the extension itself and the reasons given therefor”. In the second case, which
is the application itself, Justice Muldoon concluded that the extension of time
invoked was not justified under section 9 of the Act and, therefore, amounted
to a deemed refusal.
[90]
The applicant argues that X v Canada (Minister of National Defence) (1990), 41 FTR 16, [1990] FCJ No 540 (FC) [X1] and X
v Canada (Minister of National Defence), [1991] 1 FC 670, 41 FTR 73 (FC) [X2]
should be distinguished. In these cases, the Court concluded that
it did not have jurisdiction over applications brought pursuant to the Act
where there had been no refusal of access at the time of the applications. In X1,
the Government institution had claimed an extension but failed to provide the
requested records within that extended period. It was therefore deemed to have
refused to give access. It later provided the requested records but the
requester pursued the matter, first complaining about the deemed refusal to the
Information Commissioner and then proceeding with an application to the Federal
Court. In X2, the facts were similar except that the Government
institution disclosed the requested records well in advance of the expiration
of the extension of time. The applicant submits that X1 and X2 apply
only in cases where access to the requested records has been granted before the
applications. The applicant also argues that in X2, the Court did not
consider the issue of whether an invalid extension of time was reasonable, or
was a deemed refusal.
[91]
The applicant also argues that an important
distinguishing factor between the pre-2006 jurisprudence and the present case
is the addition of subsection 4(2.1), which imposes a duty to assist requesters
and to make every reasonable effort to provide timely access to requested
records.
[92]
The respondent submits that an extension of
time, found by the Information Commissioner to be unreasonable, does not equate
with a refusal of access. The respondent relies on the jurisprudence which has
noted that the Court is not responsible to “second-guess” whether an extension
claimed under subsection 9(1) is reasonable (PSAC, supra at paras
21-22; X2, supra at para 8).
[93]
The respondent’s position is that there can be
no deemed refusal and no judicial review by the Court until the time period for
providing the requested records has passed.
[94]
The respondent also relies on Canada
(Attorney General) v Canada (Information Commissioner), 2002 FCT 136, 216
FTR 274 [Attorney General], noting that in that case, the Government
institution claimed an extension of three years because 270000 pages of
documents were requested. Justice Kelen set aside subpoenas issued by the
Information Commissioner and adopted the analysis in X1 and X2,
concluding that there can be no deemed refusal until the expiration of the
extended time limit.
[95]
The respondent submits that the decisions in External
Affairs can be distinguished: the applications were brought after the
extension periods claimed under section 9 had expired; the Crown conceded that
an unauthorized extension under section 9(1) can amount to a deemed refusal,
which is the very point at issue in the present case; and, the reasoning in External
Affairs has not been followed in subsequent cases.
[96]
The respondent also notes the clearly different
wording of section 30 regarding complaints and sections 41 and 42 regarding
judicial review. Under section 30, the Act explicitly empowers the Information
Commissioner to receive and investigate complaints from persons who “consider
the extension [claimed pursuant to section 9] unreasonable”, whereas sections
41 and 42 do not mention claimed extensions of time. The respondent argues that
if Parliament had intended to provide for review regarding extensions of time,
it would have explicitly so provided, rather than providing only for complaints
to be made and investigated.
An extension
of time does not constitute deemed refusal
[97]
A claimed extension of time, even though the
Information Commissioner has found it to be unreasonable, does not constitute a
deemed refusal of access.
[98]
PSAC is determinative. Very similar
arguments were made by PSAC and the same jurisprudence was relied on. PSAC
sought information related to the development of the Public Sector Equitable
Compensation Act. The original request would have required a five year
extension to respond, and one of the subsequent smaller requests led to a
claimed extension of 760 days (25 months).
[99]
In PSAC, supra at paras 21-24,
Justice Beaudry considered and rejected the applicant’s arguments, and found
that:
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.
[100]
As noted above, the applicant takes a different
interpretation of PSAC and seeks to distinguish it on the basis that, in
the present case, the Information Commissioner found the claimed extension to
be unreasonable, whereas in PSAC, the Information Commissioner did not
make such a finding. The applicant also points to paragraph 23, where Justice
Beaudry acknowledged the contrary decisions in External Affairs.
[101]
I do not agree that this is a basis to
distinguish PSAC from the present case. There is no footing to argue
that the jurisprudence is inconsistent and that the door remains open to find
that an unreasonable extension can be a deemed refusal. Justice Beaudry very
clearly stated that based on the language of the statute and the relevant case
law, that there can be no deemed refusal under the Act until the time period
has expired. This addresses the same argument advanced by the applicant in the
present case.
[102]
The same issue that is before the Court in the
present case was also directly addressed by the Court in Attorney General,
where Justice Kelen concluded that a deemed refusal under subsection 10(3)
occurs only when a Government institution fails to give access to the record
within the time limits set out in the Act. The Court held, at paras 26-27:
[…] In the case at
bar, the time limit for giving access has been extended to three years and that
time period has not yet passed. Accordingly, there is no "deemed refusal
to give access" since the government institution has not refused to give
access within the extended time limit.
[…]
In X v. Canada,
supra, the time period had been extended to 270 days, and the Court held until
the extended time period expires, there is no "deemed refusal".
Justice Strayer held that the Federal Court does not have the responsibility to
"second-guess" whether the extension is reasonable. The respondent
has the power to receive and investigate a complaint that an extension of time
is not reasonable. But the respondent does not have power beyond reporting his
findings and recommendations with respect to the reasonableness of the
extension.
[103]
Contrary to the applicant’s submission that Attorney
General does not apply to the present case because it involved an
application that was not brought pursuant to the Act but was brought pursuant
to section 18.1 of the Federal Court Acts, the Court considered, as a
question of law, the interpretation of section 10(3) of the Act.
[104]
These cases make it clear that there is no
uncertainty in the case law and its interpretation of the Act.
[105]
In addition, I agree with the respondent that on
basic principles of statutory interpretation, the difference between section 30
and sections 41 and 42 signals Parliament’s clear intention that requesters may
complain about claimed extensions and the Information Commissioner may
investigate the complaint, but that is the extent of the recourse.
[106]
Subsection 30(1) provides that a person may make
a complaint where they believe that an extension of time claimed pursuant to
section 9 is unreasonable and the Information Commissioner shall receive and
investigate that complaint. In contrast, section 41 permits review by the
Federal Court only where a person “has been refused access to a record
requested under this Act or a part thereof” [emphasis added].
[107]
The conclusion that this Court has no
jurisdiction to hear the present application pursuant to section 42 of the Act
because a claimed extension of time, although found to be unreasonable by the
Information Commissioner after an investigation, is not a deemed refusal under
section 10(3) of the Act, unfortunately does not advance the interests that the
Information Commissioner seeks to champion on behalf of requesters.
[108]
The Information Commissioner has very
effectively highlighted the limitations on its ability to ensure compliance
with the Act on behalf of persons who request information and are entitled to
information, subject to exemptions.
[109]
Where the Information Commissioner investigates
a complaint about a claimed extension of time, all that can be done, if the
extension is found to be unreasonable, is to make recommendations to the head
of the Government institution and to rely on the Annual Reports, and where
appropriate, a Special Report to focus attention on the issue and encourage
better compliance in future cases. There is no way to provide a remedy to the
requester where the requester does not receive the records requested within a
reasonable period of time or to meet the specific needs of the requester who
likely sought the records for a particular purpose, which may be thwarted by a
long delay.
[110]
The related issue is whether an extension is
reasonable and who can make this determination. The department responding to
the request seems to hold all the cards in terms of establishing the time
extension needed. The fact that not meeting the time limit claimed will be a deemed
refusal, may encourage Departments to err on the side of caution with the hope
that they can provide the requested records sooner. Whether departments should
have the ability to seek further extensions where necessary could add
uncertainty for the requester and doesn’t address the lack of any remedy to
challenge the claimed extension.
[111]
Although a three year extension may be
unreasonable from the perspective of the requester, when all the circumstances
are considered, it may be reasonable. However, five or ten year extensions may
completely defeat the goals of the Act and may be prima facie
unreasonable, yet there remains no recourse to address such extensions.
[112]
The consequence of the applicant’s position that
an unreasonable extension is invalid would mean that in the present case, the
failure to provide the records within the 30 day period, even though the
respondent claimed a three year extension, results in a deemed refusal and
would permit judicial review of the refusal to provide access. This would not
necessarily speed up the provision of records to the requester and the Court
will not be best placed to determine what the appropriate time to comply would
be. Moreover, the respondent would be faced with responding to the judicial
review while at the same time responding to the access request which may
duplicate efforts and spread resources even thinner.
Was the
extension claimed reasonable (and if not reasonable, was it invalid)?
[113]
The applicant’s position is that the extension
claimed did not comply with section 9 and as a result, is an invalid extension.
[114]
The applicant relies on Attaran v Canada (Minister
of Foreign Affairs), 2011 FCA 182, 420 NR 315 for its position that
the respondent must exercise its discretion to claim an extension in accordance
with the provision granting it that power, and it did not do so.
[17] As stated by
the Supreme Court in Criminal Lawyers’ Association at paragraph 46, a
discretion conferred by statute must be exercised consistently with the
purposes underlying its grant. This is consistent with Telezone where
this Court stated, at paragraph 47, “when the Act confers on the head of a
government institution a discretion to refuse to disclose an exempted record,
the lawfulness of its exercise is reviewed on the grounds normally available in
administrative law for the review of administrative discretion, including
unreasonableness.” One ground of administrative review is that a discretion
conferred by statute must be exercised within the boundaries imposed by the
statute. See: Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at paragraph 56. Thus, the parties do not dispute that this
Court may intervene if the respondent did not consider the exercise of
discretion.
[115]
The applicant submits that
Government institutions cannot be permitted to claim never-ending or excessively
long extensions and remain immune from review.
[116]
The applicant argues that DND failed to show
that the extension of time met the criteria of reasonableness under paragraph
9(1)(a) of the Act; although the volume of the information is large, DND did
not explain how processing the request would interfere with its operations. In
addition, DND failed to show that the extension of time was reasonable pursuant
to paragraph 9(1)(b) of the Act; DND did not explain how 880 days could be a
reasonable period of time. The applicant also notes that DND grossly overestimated
the time required.
[117]
The applicant also submits that DND failed to
consider relevant considerations including the purpose of the Act and
considered irrelevant factors, including that any extension of time would be
unchangeable once claimed.
[118]
The respondent reiterates that the Court does
not have jurisdiction to hear the application, but argues that the extensions
claimed pursuant to paragraphs 9(a) and (b) of the Act were reasonable.
[119]
The respondent submits that DND clearly advised
the applicant of all the circumstances justifying the need for the extension,
including the number of documents, the need for DND to do the initial review
and identify which documents would be sent out to other departments for
consultation, that the 880 day extension was based on past practice and the
number of pages in the current request, and that consultations with other
departments and other countries would be needed given the nature of the
information.
[120]
The respondent notes that the submissions of
the ATIP Director elaborated on the explanation indicating that many variables
were considered including previous experience with similar types of requests,
the workload of the responsible analyst, the need to review the documents with
respect to litigation and solicitor client privilege and, again, the need for
consultations, perhaps more than once.
[121]
The respondent also noted that the institution
only has 30 days to: assess the time it anticipates will be needed to respond
to a request and whether external consultations are necessary; and, estimate
how long those external consultations may take. Once the institution commits to
a time period, it cannot change the date or it will face being put in a deemed
refusal situation. Therefore, it is reasonable for an institution to consider
potential causes of delay at an early stage.
No need to
determine if the extension is reasonable
[122]
Because the Court has no jurisdiction to
consider the application pursuant to section 41 or 42 of the Act, it need not
consider whether the extension claimed is reasonable.
[123]
As the applicant noted, the discretion to claim
the extension must be exercised within the statutory boundaries. In the present
case, the respondent provided a rationale pursuant to paragraphs 9(a) and (b).
It was guided by the statutory provision in estimating the time needed. The
applicant disagrees that the explanations or rationale provided is reasonable.
However, that issue is not reviewable.
[124]
As noted above, assessments of what is
reasonable generally require consideration of the circumstances. A three year
delay may be reasonable for some requests to some Government institutions and
not to others. The Information Commissioner may not always be well-placed to
determine whether an extension is reasonable; the Information Commissioner
needs a full appreciation of the circumstances of the respondent.
[125]
As noted in PSAC, supra at para 21 and
the other cases referred to, the Court should not second guess whether an
extension is reasonable.
[126]
Departments responding to access to information
requests cannot forego their core responsibilities to devote resources to
process access to information requests for thousands of pages to meet short and
possibly unrealistic and impossible deadlines. The gathering of documents,
review by responsible officers, consultation with other departments,
identification of exemptions, re-review, and possible additional consultation
takes time.
[127]
Departments must comply with the Act and to do
so, they rely on claimed extensions. If compliance within the 30 day period,
rather than within a claimed extended time period, is to be a priority, then
sufficient resources must be available to departments. Other policy
considerations highlight the need for the Act to be considered with the input
of all stakeholders.
Costs
[128]
The respondent seeks costs on the motion to
strike the application and on the application.
[129]
Given that the respondent was not successful on
the motion to strike, it follows that it will not have its costs on the motion.
[130]
With respect to the application, I agree with
the applicant that the interests she has raised are important and are in the
public interest. Although the applicant has not been successful in her
application, an award of costs against the applicant is not appropriate.
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