Docket: T-2133-14
Citation:
2015 FC 267
Vancouver, British Columbia, March 3, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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DR. GÁBOR LUKÁCS
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Applicant
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and
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PRESIDENT OF THE NATURAL SCIENCES
AND ENGINEERING RESEARCH
COUNCIL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
After Gábor Lukács’ request for access to
information held by the Natural Sciences and Engineering Research Council
(NSERC) was refused, he filed a complaint with the Office of the Information
Commissioner of Canada (OIC). NSERC ultimately provided three separate
responses to Dr. Lukács’ access request, each citing different sections of
the Access to Information Act to justify its refusal to disclose the
information in issue.
[2]
Following receipt of a report from the OIC, Dr. Lukács
commenced this application for judicial review with respect to NSERC’s
refusal of his access request. NSERC has now brought a motion to strike Dr. Lukács’
application, arguing that to the extent that the application relates to NSERC’s
refusal to disclose the documents under subsection 10(2) of the Access to
Information Act, the application is moot as NSERC had withdrawn its
reliance on that statutory provision prior to the release of the OIC’s report.
[3]
To the extent that Dr. Lukács seeks to
challenge NSERC’s reliance on other sections of the Access to
Information Act to deny him access to the information he is seeking, NSERC
asserts that the application is premature, as the OIC has neither investigated
nor considered whether NSERC’s reliance on these exemptions is proper.
[4]
I agree with NSERC that Dr. Lukács’
application is bereft of any chance of success. As a consequence, the motion to
strike will be granted.
I.
Background
[5]
In order to understand the issues raised by NSERC’s
motion, it is necessary to understand the chronology of events relating to Dr. Lukács’
access to information request.
[6]
On April 24, 2012, Dr. Lukács requested
access to documents held by NSERC. NSERC is a federal government agency that
funds research in the natural sciences and engineering. The documents sought by
Dr. Lukács included:
1. Copies of any reports or correspondence regarding the
nature and outcomes of investigations regarding research misconduct, as
reported to NSERC by McGill University between January 2010 and April 2012,
with nominative information concerning individuals excised as required by the
Act.
2. Copies of any decisions or correspondence related to
actions subsequently taken by NSERC in response to the reports or
communications from item (1), immediately above, with nominative information
concerning individuals excised as required by the Act.
[7]
On May 8, 2012, NSERC informed Dr. Lukács
that it could “neither confirm nor deny the existence
of such records in accordance with section 10(2) of the Access to
Information Act” (the first refusal). Subsection 10(2) of the Act
allows the head of a government institution to refuse to indicate the existence
of a record in exceptional circumstances, where doing so would itself disclose
information to a requester: Michel W. Drapeau & Marc-Aurèle Racicot,
Federal Access to Information and Privacy Legislation Annotated 2015 (Toronto:
Thomson Reuters, 2014) at 1-154.6. The full text of the relevant statutory
provisions is attached as an appendix to these reasons.
[8]
Dr. Lukács filed a complaint with the OIC concerning
NSERC’s first refusal, submitting that NSERC had failed to comply with
paragraph 10(1)(b) of the Access to Information Act, R.S.C. 1985, c. A-1.
This provision states that where the head of a government institution refuses
to grant access to information, notice should be provided as to “the specific provision of this Act on which the refusal was
based or, where the head of the institution does not indicate whether a record
exists, the provision on which a refusal could reasonably be expected to be
based if the record existed”.
[9]
On November 5, 2012, NSERC sent Dr. Lukács
a further response to his access request, reiterating its position that, in
accordance with subsection 10(2) of the Act, it could neither confirm nor deny
the existence of the information sought. However, this response added that if
such a record existed “it can reasonably be expected
that it would have been withheld pursuant to subsection 19(1) of the Act for
personal information” (the second refusal).
[10]
Dr. Lukács provided the OIC with further
submissions regarding the second refusal, and in July of 2014, he received
a third response from NSERC with respect to his access request (the third
refusal). This time NSERC stated that “…further to your
complaint with the [OIC] … and discussions we had with the investigator, the
ATIP office has reviewed the application of subsection 10(2) and replaced it
with 19(1) …” [my emphasis]. The letter went on to state that “[t]he documents will now be withheld, in their entirety,
under section 19(1) of the Act”. Subsection 19(1) of the Act directs
that records containing personal information about an identifiable individual
not be disclosed, absent certain circumstances that do not apply here.
[11]
NSERC also stated in the third refusal that some
of the requested documents should also be withheld under section 23 of the Act,
which protects documents that are subject to solicitor-client privilege, and
under paragraph 21(1)(b) of the Act, which protects accounts of deliberations
and consultations involving the directors, officers or employees of a
government institution, a minister of the Crown or the staff of a minister.
[12]
On July 30, 2014, Dr. Lukács provided the
OIC with submissions in relation to the third refusal.
II.
The OIC’s Report
[13]
The OIC outlined the results of its
investigation into Dr. Lukács’ complaint in a report dated September 2,
2014. The report noted that the OIC had disagreed with NSERC’s reliance on
subsection 10(2) of the Act in its first and second responses, and that the OIC
had asked NSERC to reconsider its position in this regard. According to the
report, it was after further discussions between the OIC and NSERC that NSERC
issued “a final response” to Dr. Lukács’
access request in July of 2014, “replacing” its
reliance on subsection 10(2) of the Act with exemptions claimed under sections
19(1), 21(1)(b) and 23 of the Act.
[14]
The OIC recognized in its report that Dr. Lukács
was dissatisfied with the investigation, but stated that its investigation had
been “limited to the applicability of section 10(2) of
the Act to the responsive documents”. The report further indicated that
the OIC would consider Dr. Lukács’ letter of July 30, 2014 “as a new complaint concerning the exemptions applied by NSERC
on the responsive documents”. According to the OIC, a new file number
concerning these exemptions had been assigned to the complaint, and an
investigator had been assigned to inquire into the matter.
[15]
The OIC completed its analysis by stating that “[t]herefore, we will conclude this complaint concerning the
applicability of section 10(2) of the Act as well founded resolved”.
[16]
Finally, the report notified Dr. Lukács of his
right to apply to this Court for a review of NSERC’s decision pursuant to
section 41 of the Act.
III.
Dr. Lukács’ Application for Judicial Review
[17]
On October 17, 2014, Dr. Lukács filed his application
for judicial review with respect to NSERC’s continuing refusal to grant him
access to the requested documents. The application seeks an order requiring the
President of NSERC to disclose the requested documents to Dr. Lukács, together
with his costs of the application.
IV.
NSERC’s Motion to Strike
[18]
NSERC responded to Dr. Lukács’ application
with its motion to strike. NSERC observed that as of the date of Dr. Lukács’
application, the OIC had only investigated and reported on NSERC’s reliance on
subsection 10(2) of the Act. To the extent that Dr. Lukács’ application seeks
to challenge NSERC’s reliance on subsection 10(2) of the Act, NSERC says that
the application is moot, as it was no longer relying on subsection 10(2) of the
Act to justify its refusal to grant access to the requested documents when the
report was issued.
[19]
NSERC also submits that the OIC has yet to
consider the exemptions that it now asserts under sections 19(1), 21(1)(b) and
23 of the Act. Absent a report from the OIC addressing NSERC’s reliance on
these provisions, NSERC says that Dr. Lukács’ application for judicial
review is premature.
V.
The Test on Motions to Strike Applications for
Judicial Review
[20]
Applications for judicial review are intended to
be summary proceedings, and motions to strike Notices of Application add
to the cost and time required to deal with such matters. Moreover, as the
Federal Court of Appeal observed in David Bull Laboratories (Canada) Inc. v. Pharmacia
Inc., [1995] 1 F.C. 588, 176 N.R. 48, the striking out process is more
feasible in actions than in applications for judicial review. This is
because there are numerous rules governing actions which require precise pleadings
as to the nature of the claim or defence, as well as the facts upon which
the claim is based. There are no comparable rules governing Notices of
Application for Judicial Review.
[21]
As a consequence, the Federal Court of Appeal
has determined that an application for judicial review should not be struck out
prior to a hearing on the merits, unless the application is “so clearly improper as to be bereft of any possibility of
success”. The Court further observed that “[s]uch
cases must be very exceptional and cannot include cases … where there is simply
a debatable issue as to the adequacy of the allegations in the notice of motion”:
David Bull, above at para. 15.
[22]
Unless a moving party can meet this very
stringent standard, the “direct and proper way to
contest an originating notice of motion which the respondent thinks to be
without merit is to appear and argue at the hearing of the motion itself”:
David Bull, above at para. 10; see also Addison & Leyen Ltd. v.
Canada, 2006 FCA 107 at para. 5, [2006] 4 F.C.R. 532, rev’d on other
grounds 2007 SCC 33, [2007] 2 S.C.R. 793.
VI.
Is the Application Moot Insofar as it Relates to
Subsection 10(2) of the Act?
[23]
As the Supreme Court of Canada noted in Borowski
v. Canada (Attorney General), [1989] 1 S.C.R. 342 at para. 15, 57 D.L.R.
(4th) 231, mootness is a policy or practice that allows a court to decline to
decide cases that do not involve a live controversy between the parties, but
raise only hypothetical or abstract questions.
[24]
The jurisdiction to strike a proceeding for mootness
stems from the Court’s inherent jurisdiction to control its own process, and
not by reference to the power conferred on the Court by Rule 221 of the Federal
Courts Rules, S.O.R./98-106: Aktiebolaget Hassle v. Apotex Inc.,
2008 FCA 88 at paras. 13-14, 375 N.R. 342.
[25]
I do not understand there to be any dispute that
this application is properly before the Court, to the extent that it relates to
NSERC’s original subsection 10(2) claim for exemption. NSERC claimed this
exemption in its first response to Dr. Lukács’ access request, and it was
investigated by and reported on by the OIC prior to the commencement of Dr. Lukács’
application. As a consequence, the procedural requirements of section 41 of the
Act have been satisfied.
[26]
That said, by the time that the OIC delivered
its report, NSERC was no longer relying on subsection 10(2) to refuse Dr. Lukács
access to the requested documentation. There is thus no live controversy
between the parties as to whether this exemption was properly claimed by NSERC,
and Dr. Lukács cannot derive any benefit from a judicial decision in this
regard. To this extent, Dr. Lukács’ application is clearly moot.
[27]
While the Court has discretion to decide a case that
has become moot, Dr. Lukács has not identified any principled basis that
would justify the expenditure of scarce judicial resources to decide the
propriety of an exemption that NSERC is no longer claiming. The availability of
a claimed exemption is largely a fact-specific exercise, and does not involve
an issue of public importance that would transcend the interests of these
parties. Nor is the availability of the subsection 10(2) exemption in this case
an issue that is capable of repetition, but otherwise elusive of review.
Consequently, I decline to exercise my discretion to allow this aspect of the
application to proceed notwithstanding the fact that it is moot.
[28]
The next question is whether the application
should be struck on the basis that it is premature, insofar as it relates to
the exemptions that are actually bring relied upon by NSERC. To answer this
question, it is necessary to start by having regard to the procedural
requirements of the Access to Information Act.
VII.
The Requirements of Section 41 of the Access
to Information Act
[29]
Subsection 41 of the Act provides that anyone
denied access to a record requested under the legislation 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) …”.
[30]
Subsection 37(2) of the Act provides that after
investigating a complaint, the OIC shall report to the
complainant and the government institution the results of the investigation.
[31]
In Statham v. Canadian Broadcasting Corp., 2010
FCA 315 at para. 64, [2012] 2 F.C.R. 421, the Federal Court of Appeal
identified three prerequisites that an individual seeking access to information
must satisfy before applying to the Federal Court under section 41 of the Act.
These are:
1. The
applicant must have been “refused access” to a requested record;
2. The
applicant must have complained to the OIC about the refusal; and
3. The
applicant must have received a report of the OIC under subsection 37(2) of the
Act.
[32]
As Justice Stratas observed in Whitty v. Canada (Minister of the Environment), 2014 FCA 30, at para. 8, 460 N.R. 372, section 41
of the Act “is a statutory expression of the common law
doctrine that, absent exceptional circumstances, all adequate and alternative
remedies must be pursued before resorting to an application for judicial
review”.
[33]
The parties agree that the first two Statham
criteria have been met in this case. Where they disagree is in relation to the
third criterion.
[34]
As noted earlier, NSERC asserts that the OIC has
yet to report on the availability of exemptions under sections 19(1), 21(1)(b)
and 23 of the Act, and that Dr. Lukács’ application for judicial review is
premature in the absence of such a report.
[35]
Dr. Lukács submits that the third Statham
criterion only requires that an applicant receive “a
report” from the OIC. He submits that he has received “a report”, together with notice from the OIC of his
right to seek judicial review with respect to NSERC’s refusal to provide him
with access to the requested documents.
[36]
According to Dr. Lukács, section 41 of the
Act does not specify what an OIC report must address. Dr. Lukács also
submits that the OIC cannot bifurcate its investigations and reports, as it appears
to have done in this case. According to Dr. Lukács, once the OIC has
delivered “a report” in relation to an access
complaint, it is functus officio and loses jurisdiction over the matter.
[37]
It is plain and obvious that Dr. Lukács’ submissions
on this point cannot succeed.
[38]
Section 34 of the Act makes it clear that the
OIC is master of its own procedure insofar as the conduct of
investigations is concerned. I see nothing in the legislative structure that
would preclude the OIC from investigating and reporting on a complaint in
stages as it is doing here.
[39]
We must, moreover, keep in mind that this case involves
a challenge to NSERC’s refusal to grant access to Dr. Lukács, and not an
application to judicially review the way that the OIC had decided to investigate
Dr. Lukács’ complaint.
[40]
I also cannot accept Dr. Lukács’ argument
that once the OIC has delivered a report, even if that report only deals with a
portion of an access complaint, it is functus officio and loses
jurisdiction over a matter.
[41]
The doctrine of functus officio provides
that once a decision-maker has done everything necessary to perfect his or her
decision, he or she is then barred from revisiting that decision, other than to
correct clerical or other minor errors. The policy rationale underlying this
doctrine is the need for finality in proceedings: Chandler v. Alberta
Association of Architects, [1989] 2 S.C.R. 848, at paras. 20-21, [1989]
S.C.J. No. 102.
[42]
In order to engage the principle of functus
officio, the decision in issue must be final. In the context of
judicial decision-making, a decision may be described as final when “... it leaves nothing to be judicially determined or
ascertained thereafter, in order to render it effective and capable of
execution, and is absolute, complete and certain ...”: G. Spencer Bower
& A.K. Turner, The Doctrine of Res Judicata, 2d. ed. (London:
Butterworths, 1969) at 132, cited in Donald J.M. Brown & John M. Evans, Judicial
Review of Administrative Action in Canada, loose-leaf (Toronto: Thomson
Reuters, 2014), vol. 3 at 12:6222.
[43]
Functus officio
can apply in the context of administrative decision-making: Chandler, at
paras. 20-21. To apply, however, it still requires that there be a final
decision. The OIC’s report was not a final one, as it clearly
deferred consideration of the substantive grounds for the refusal of access to
a future investigation. It was, moreover, arguably not even a decision
as it did not finally determine any rights. In contrast to investigative bodies
such as the Canadian Human Rights Commission, the OIC does not make binding
decisions, and only has the power to issue recommendations. I am thus not
persuaded that the doctrine of functus officio has any application in a
non-adjudicative, investigative process such as that in issue in this case.
VIII. The Power of a Government Institution to Amend its Grounds for
Refusing Access
[44]
Dr. Lukács also asserts that he has only
made one access request, which was refused by NSERC. According to Dr.
Lukács, the fact that NSERC repeatedly amended its grounds for refusing access
does not create multiple decisions, each of which must be subject to separate
applications for judicial review. If this were so, Dr. Lukács contends
that a government institution could avoid its responsibilities under the Act by
repeatedly amending its grounds of review every time the OIC is about to
complete its investigation.
[45]
Although he did not raise this argument before
the OIC, Dr. Lukács submits that a government institution cannot amend its
grounds for refusing access to documents once a complaint has been filed with
the OIC. In support of this claim, Dr. Lukács cites the Federal Court of
Appeal’s decision in Davidson v. Canada (Solicitor General) 1989] 2 F.C.
341, 61 D.L.R. (4th) 342. That decision is, however, readily distinguishable
from the present case, as the amended grounds relied upon in Davidson
were only asserted by the government institution after the delivery of
the Privacy Commissioner’s report, and not before.
[46]
The jurisprudence has, moreover, established
that a government institution can indeed amend the grounds asserted for denying
access if it does so before the OIC has reported in relation to an
access complaint: see, for example, Tolmie v. Canada (Attorney General),
[1997] 3 F.C. 893, 137 F.T.R. 309.
[47]
Tolmie involved a
request for access to a computer-readable version of the Revised Statutes of
Canada. Access was initially denied to protect the economic interests of the
government, as it was in the process of making the statutes available for sale
in an electronic format.
[48]
Mr. Tolmie filed a complaint with the OIC regarding
the refusal to provide access to the requested documents. However, before the
OIC could complete its investigation, the requested information became publicly
available. Accordingly, the government institution amended its initial response
to claim that the information was published material available for purchase by
the public.
[49]
The OIC found that the government institution’s first
ground for not disclosing the requested information was justified at the time
of the complaint. The OIC further found that the amended ground asserted by the
government institution justified non-disclosure at the date of the report, as
the information was available on the internet by that time.
[50]
Justice McGillis dismissed Mr. Tolmie’s
application, noting that the OIC had “expressly
considered the question of whether the respondent could rely on an additional
ground of exemption raised during the course of the investigation”. She
found that the OIC had properly determined that, on the facts of that case, the
government institution was entitled to raise an additional ground of exemption during
the course of the OIC’s investigation: Tolmie, above, at para. 13.
[51]
It is thus clear that there is no blanket
prohibition on the ability of government institutions to amend the grounds
relied upon to justify the refusal of access to documents once a complaint has
been filed with the OIC, and that they can amend the grounds of exemption
during the OIC investigative process.
[52]
Dr. Lukács argued that little weight should be
given to Justice McGillis’ decision in Tolmie, because the Federal Court
of Appeal subsequently overturned a decision referred to in her reasons: Rubin
v. Canada (Minister of Transport (1995), 105 F.T.R. 81 [1995] F.C.J. No.
1731, rev’d [1998] 2 F.C. 430, 154 D.L.R. (4th) 414.
[53]
While this is true, the Federal Court of Appeal
did not appear be concerned about the fact that the government institution had
amended its grounds for exemption in Rubin while the matter was still
before the OIC. Indeed the entire Federal Court of Appeal decision relates to
the amended ground.
[54]
Insofar as this Court’s decision in Matol
Botanical International Inc. v. Canada (Minister of National Health and
Welfare), (1998), 84 F.T.R. 168, [1994] F.C.J. No. 860, is concerned, the
facts of that case are readily distinguishable from the present case. In Matol,
a third party brought an application under section 44 of the Act, objecting to
the proposed disclosure by a government institution. The case thus did not
involve a complaint to the OIC, nor was an OIC investigation or report
involved, with the result that the section 41 prerequisites for commencing a
Federal Court application did not apply. The Court’s comments at paragraph 34
of Matol must be read in that context.
IX.
Is the Application Premature to the Extent that
it Relates to NSERC’s Other Asserted Exemptions?
[55]
The OIC has yet to investigate or report on the
availability of the exemptions claimed by NSERC under sections 19(1), 21(1)(b)
and 23 of the Act. Dr. Lukács’ application for judicial review is thus
premature: Whitty, above at para. 8. The application should therefore be
struck on this basis.
X.
Conclusion
[56]
Much of Dr. Lukács’ dissatisfaction stems
from the OIC’s decision to respond to his complaint by dividing its investigative
and reporting functions into two phases. I agree with the parties that it is
puzzling why the OIC would choose to report on a ground (subsection 10(2) of
the Act) that was no longer in issue as of the date of the report, while at the
same time opting not to investigate a ground (subsection 19(1) of the Act -
personal information) that NSERC had asserted some two years earlier. However,
as was noted earlier, the OIC is master of its own procedure, and this
application does not relate to the way that the OIC has performed its statutory
duties.
[57]
To the extent that Dr. Lukács’ application
relates to NSERC’s refusal to grant him access to the requested
information under subsection 10(2) of the Act, the application is moot, as NSERC
is no longer claiming an exemption under that provision.
[58]
To the extent that Dr. Lukács’ application
relates to NSERC’s refusal to grant him access to the requested information
under sections 19(1), 21(1)(b) and 23 of the Act, the application is premature.
The OIC has neither investigated nor reported on this aspect of Dr. Lukács’
complaint, with the result that the statutory preconditions for the
commencement of an application for judicial review have not been met in this
regard.
[59]
In these circumstances, Dr. Lukács’
application is clearly bereft of any chance of success, and NSERC’s motion is
granted. It will, of course, be open to Dr. Lukács to file a further
application for judicial review in the future if he is not satisfied with the
results of the OIC’s investigation into the outstanding aspects of his access
complaint.
[60]
NSERC has not sought its costs of this
application, and Dr. Lukács has not persuaded me that this case raises an
important new principle regarding the Access to Information Act such
that he should be entitled to his costs, notwithstanding the result.
Consequently, no order will be made as to costs.
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