Docket: T-828-12
Citation:
2015 FC 1251
Ottawa, Ontario, November 5, 2015
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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SHELDON BLANK
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Applicant
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and
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THE MINISTER OF
THE ENVIRONMENT
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Respondent
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JUDGMENT AND REASONS
[1]
This is at least the 20th application
by Mr. Blank for judicial review of alleged refusals by government officials to
provide records requested under the Access to Information Act. There have
been 10 appeals, 7 by Mr. Blank and 3 by the Government. One case even made it
to the Supreme Court, the unsuccessful appeal by the Minister of Justice from a
decision of the Federal Court of Appeal holding that litigation privilege,
unlike solicitor/client privilege, expired at the end of the litigation (Blank
v Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319).
[2]
It all began 20 years ago with the laying of 13
charges in 1995 against Mr. Blank and his company Gateway Industries Ltd for alleged
regulatory offences under the Fisheries Act and the Pulp and Paper
Effluent Regulations. Five counts alleged pollution of the Red River in
Winnipeg and the other eight alleged breaches of reporting requirements under
the Fisheries Act. The eight charges relating to the reporting
requirements were dismissed by the Manitoba Provincial Court in 1997 and the
summary conviction offences for alleged pollution were quashed by the Manitoba
Court of Queen’s Bench in 2001. Thereafter, the following year, new charges by
way of indictment were laid. The Crown permanently stayed these charges after
the trial had been scheduled to commence in 2004.
[3]
In the meantime, in 2002, Mr. Blank sued the
Federal Crown and others in damages in the Manitoba Court of Queen’s Bench for
alleged fraud, perjury, conspiracy and abuse of prosecutorial powers. I am told
that case is still pending.
[4]
The history of Mr. Blank’s saga has been
summarized in a number of cases, including the decision of the Federal Court of
Appeal in Blank v Canada (Minister of Justice), 2004 FCA 287 and more
recently by Mr. Justice Brown in Blank v Canada (Minister of Justice),
2015 FC 753 (under appeal). By January 2004, he had made 119 requests to
Environment Canada for records relating to his prosecution. More than 59,000
pages were released to him.
[5]
Although Mr. Blank is not required to justify
his requests, he is pleased to say that they are in aid of his action in the
Manitoba Court of Queen’s Bench, and also are taken as a matter of principle.
He does not suggest that the discovery process in Manitoba is inadequate, but
rather that if he frames his requests properly documents are produced which
might otherwise not meet the relevance test. It is, he says, up to him to
decide what is relevant and what is not.
[6]
This particular judicial review relates to a
request on April 7, 2005 to Environment Canada for:
All records of Daniel Woo dealing with
Gateway Industries Ltd. and/or Sheldon Blank on the subject of:
-section 82
Fisheries Act
-Ministerial
awareness
-Amendment to the
Charges
-Limitation Period
-Minister’s
Certificate
This will include all communications on the
above subjects to Mr. Woo from anyone else; and from Mr. Woo to anyone else;
and copies that Mr. Woo was in receipt of. This request will include emails and
notes of conversations dealing with the above subjects.
[7]
Mr. Woo was an employee in the Environmental
Protection Branch, Prairie and Northern Region of Environment Canada. He
searched his records and stated that he did not possess any record responsive
to the request. An additional search was carried out by the Environmental
Protection Branch of the Prairie and Northern Region. Again, no records
responsive to the request were said to be found.
[8]
Mr. Blank was so informed on April 28, 2005 and told
(although he already knew) that he was entitled to complain to the Office of
the Information Commissioner of Canada (hereinafter the “Commissioner” or “she”),
which he did on May 6, 2005. On May 26, 2005, the Commissioner gave Environment
Canada a Notice of Intention to Investigate and a Summary of the Complaint.
[9]
It was only some four and a half years later, in
connection with the investigation of another complaint by Mr. Blank, that
documents which contained Mr. Woo’s name were sighted. These documents were not
in Environment Canada’s offices in Winnipeg, but rather were at the law firm of
Fillmore Riley, who were defending the civil action brought by Mr. Blank.
[10]
Some 1,350 pages were reviewed by the
Commissioner. Although Environment Canada maintained the position that none of
these documents were responsive to the request, the Commissioner suggested that
99 pages were responsive and recommended that they be produced. They were
provided to Mr. Blank, although many pages were redacted on the grounds of
solicitor/client privilege, personal information or Cabinet confidence.
[11]
On March 23, 2011, the Commissioner wrote to Mr.
Blank to report the above and to say that she was now satisfied that thorough
and proper searches were conducted and that all relevant records responsive to
the request had been processed. Mr. Blank’s complaint was recorded as being
well founded and resolved without the need to make formal recommendations to
the head of the government institution in question.
[12]
Mr. Blank did not complain to the Commissioner
that parts of the 99 pages were redacted. Rather, he applied to this Court for a
judicial review. Although his application was filed out of time, the Court, in
its discretion, extended the delays.
[13]
His application reads as follows:
APPLICATION UNDER section 41 of the Access
to Information Act, R.S.C. 1985, Chapter A-1 (The “Act”) for review
to the Federal Court of Canada of the refusal by the head of the Department of
Justice to disclose records requested by Sheldon Blank, by access request of
April 7, 2015 under the Act. The Respondent failed to include all
relevant records that responded to the request.
[Emphasis in the original.]
I.
The Access to Information Act
[14]
It is important to bear in mind that prior to
the passage of this Act, there was no legal right of access to Government
records (X v Canada (Minister of National Defence), [1991] 1 FC 670).
The production of documents in civil litigation in which the Crown is a party
is another matter altogether.
[15]
The purpose of the Act as set out in sections 2
and 4 is to give Canadian citizens and permanent residents a right of access to
information in records under the control of Government institutions, subject to
the exceptions set out in the Act. Exceptions include personal information (s
19), solicitor/client privilege (s 23) and confidences of the Queen’s Privy
Council (s 69). Section 25 provides that even when refusal to disclose is
justified, nevertheless such part of the record that does not contain sensitive
information and which can reasonably be severed is to be disclosed.
[16]
Complaints may be made to the Commissioner in
accordance with s 30 and following. The Commissioner has great powers of investigation
but cannot compel the government institution in question to provide the
requested documents to the complainant. The Commissioner investigated and
recommended to Environment Canada and the Department of Justice that they disclose
99 pages of material as being responsive to Mr. Blank’s request. Although they
disagreed, they complied but, apparently unbeknownst to the Commissioner,
redacted some of those pages. As aforesaid, Mr. Blank did not complain to the
Commissioner but rather came directly to this Court by way of judicial review
of Environment Canada’s decision.
II.
Points at Issue
[17]
Mr. Blank submits the following five points are
at issue:
How much deference should be accorded the
Information Commissioners Report of Finding?
Was the material gathering procedure in
compliance with the regulations set out in the Treasury Board guidelines?
Has the Respondent exercised its discretion
lawfully and severed the records in accordance with s. 25 of the Access to
Information Act?
Has the Respondent vitiated its claim of
privilege over records that demonstrate an abuse of process?
Whether the Court in an s41 Judicial Review
has the jurisdiction to consider an incomplete response (missing records)?
[18]
In his Memorandum of Fact and Law, he seeks the
following order:
1. A search of the Winnipeg offices of Environment Canada for a
complete response to the request.
2. Some
of the records were severed at an earlier time and considered original for the
purpose of this request. The Respondent should examine the records in their
intact form for severing in response to his request.
[19]
However, during the hearing, he said he was no
longer seeking an order for a new search. He would be satisfied with the
production of the approximately 1,250 pages seen by the Commissioner but not
produced, and a ruling on the redactions. He also submitted that there should
be no order as to costs, irrespective of outcome.
III.
Analysis
[20]
The first of Mr. Blank’s submissions relates to
the production of the 99 pages in redacted form. The second challenges the
opinion shared by the Commissioner, Environment Canada and the Department of
Justice, that the other 1,250 pages sighted in the offices of Fillmore Riley are
not responsive to his request.
A.
The Redactions
[21]
Although Mr. Blank only has the 99 pages in
redacted form, they were provided to me in full in the confidential affidavit
of Shelley Emmerson, Environment Canada’s manager of its Access to Information and
Privacy Office.
[22]
This case turns on s 41 of the Access to
Information Act which reads:
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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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[23]
There are two conditions precedent to a judicial
review by this Court. The first is that Mr. Blank be refused access to a
requested record. The second is that he must have complained to the
Commissioner. In this case, he did not complain to the Commissioner that some
pages had been redacted. Rather, he came directly to this Court.
[24]
The case law has been completely consistent. Mr.
Blank did not fulfil one of the conditions precedent and so this portion of his
application must be dismissed as being premature.
[25]
A recent case directly on point is the decision
of Mr. Justice Brown in Blank, above. In that case, Mr. Blank did not
ask the Commissioner to review or report on redactions on pages which had been
produced, but rather, as here, he came directly to this Court. Mr. Justice
Brown stated at paragraph 45:
…that without a complaint to and a review
and report by the Information Commissioner regarding the Department of
Justice’s disclosure, this Court lacks jurisdiction to engage in judicial
review of the relevant records by virtue of section 41 of the Act.
I agree. Mr. Blank suggests that the
decision is wrong and he has taken it to appeal.
[26]
Even if Mr. Justice Brown had gone into
unchartered territory, I find his decision eminently reasonable and would
follow it on the grounds of judicial comity. As Madam Justice Dawson said in Alfred
v Canada (Minister of Citizenship and Immigration), 2005 FC 1134 at para 15
(borrowing from Justice Wilson in Re Hansard Spruce Mills Ltd., [1954]
BCJ No 136, [1954] 4 DLR 590 (BCSC)):
…I will only go against a judgment of
another Judge of this Court if:
(a) Subsequent
decisions have affected the validity of the impugned judgment;
(b) it is demonstrated that some binding
authority in case law, or some relevant statute was not considered;
(c) the judgment was unconsidered, a nisi
prius judgment given in circumstances familiar to all trial Judges, where
the exigencies of the trial require an immediate decision without opportunity
to fully consult authority.
If none of these situations exist I think a
trial Judge should follow the decisions of his brother Judges
[Emphasis in the original removed]
[27]
But in any event, Mr. Justice Brown was
following decisions of the Federal Court of Appeal, which he, and I, are bound
to follow. See Canada (Information Commissioner) v Canada (Minister of
National Defence) (1999), 240 NR 244, at paragraph 28, Statham v
Canadian Broadcasting Corporation, 2010 FCA 315 at paragraph 55, and Whitty
v Canada (Attorney General), 2014 FCA 30 at paragraphs 8 and 9.
[28]
It is a sound principle of administrative law
that except in unusual circumstances, administrative recourses must be
exhausted before coming to this Court. In CB Powell Limited v Canada
(Border Services Agency) , 2010 FCA 61, Mr. Justice Stratas, speaking for
the Federal Court of Appeal, stated at paragraphs 30 through 33:
[30] The normal rule is that parties
can proceed to the court system only after all adequate remedial recourses in
the administrative process have been exhausted. The importance of this rule in
Canadian administrative law is well-demonstrated by the large number of
decisions of the Supreme Court of Canada on point: Harelkin v. University of
Regina, [1979] 2 S.C.R. 561; Canadian Pacific Ltd. v. Matsqui Indian
Band, [1995] 1 S.C.R. 3; Weber v. Ontario Hydro, [1995] 2 S.C.R.
929; R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706 at
paragraphs 38-43; Regina Police Association Inc. v. Regina (City) Board of
Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14 at paragraphs 31 and
34; Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001
SCC 44 at paragraph 14-15, 58 and 74; Goudie v. Ottawa (City), [2003] 1
S.C.R. 141, 2003 SCC 14; Vaughan v. Canada, [2005] 1 S.C.R. 146, 2005
SCC 11 at paragraphs 1-2; Okwuobi v. Lester B. Pearson School Board,
[2005] 1 S.C.R. 257, 2005 SCC 16 at paragraphs 38-55; Canada (House of
Commons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30 at paragraph 96.
[31] Administrative law judgments and
textbooks describe this rule in many ways: the doctrine of exhaustion, the
doctrine of adequate alternative remedies, the doctrine against fragmentation
or bifurcation of administrative proceedings, the rule against interlocutory
judicial reviews and the objection against premature judicial reviews. All of
these express the same concept: absent exceptional circumstances, parties
cannot proceed to the court system until the administrative process has run its
course. This means that, absent exceptional circumstances, those who are
dissatisfied with some matter arising in the ongoing administrative process
must pursue all effective remedies that are available within that process; only
when the administrative process has finished or when the administrative process
affords no effective remedy can they proceed to court. Put another way, absent
exceptional circumstances, courts should not interfere with ongoing
administrative processes until after they are completed, or until the
available, effective remedies are exhausted.
[32] This prevents fragmentation of the
administrative process and piecemeal court proceedings, eliminates the large
costs and delays associated with premature forays to court and avoids the waste
associated with hearing an interlocutory judicial review when the applicant for
judicial review may succeed at the end of the administrative process anyway:
see, e.g., Consolidated Maybrun, supra at paragraph 38; Greater
Moncton International Airport Authority v. Public Service Alliance of Canada,
2008 FCA 68 at paragraph 1; Ontario College of Art v. Ontario (Human Rights
Commission) (1992), 99 D.L.R. (4th) 738 (Ont. Div. Ct.). Further, only at
the end of the administrative process will a reviewing court have all of the
administrative decision-maker’s findings; these findings may be suffused with
expertise, legitimate policy judgments and valuable regulatory experience: see,
e.g., Consolidated Maybrun, supra at paragraph 43; Delmas v.
Vancouver Stock Exchange (1994), 119 D.L.R. (4th) 136 (B.C.S.C.), aff’d
(1995), 130 D.L.R. (4th) 461 (B.C.C.A.); Jafine v. College of Veterinarians
(Ontario) (1991), 5 O.R. (3d) 439 (Gen. Div.). Finally, this approach is
consistent with and supports the concept of judicial respect for administrative
decision-makers who, like judges, have decision-making responsibilities to
discharge: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at paragraph
48.
[33] Courts across Canada have enforced
the general principle of non-interference with ongoing administrative processes
vigorously. This is shown by the narrowness of the “exceptional circumstances”
exception. Little need be said about this exception, as the parties in this
appeal did not contend that there were any exceptional circumstances permitting
early recourse to the courts. Suffice to say, the authorities show that very
few circumstances qualify as “exceptional” and the threshold for exceptionality
is high: see, generally, D.J.M. Brown and J.M. Evans, Judicial Review of
Administrative Action in Canada (looseleaf) (Toronto: Canvasback
Publishing, 2007) at 3:2200, 3:2300 and 3:4000 and David J. Mullan, Administrative
Law (Toronto: Irwin Law, 2001) at pages 485-494. Exceptional circumstances
are best illustrated by the very few modern cases where courts have granted
prohibition or injunction against administrative decision-makers before or
during their proceedings. Concerns about procedural fairness or bias, the
presence of an important legal or constitutional issue, or the fact that all
parties have consented to early recourse to the courts are not exceptional
circumstances allowing parties to bypass an administrative process, as long as
that process allows the issues to be raised and an effective remedy to be
granted: see Harelkin, supra; Okwuobi, supra at paragraphs 38-55; University
of Toronto v. C.U.E.W, Local 2 (1988), 55 D.L.R. (4th) 128 (Ont. Div. Ct.).
As I shall soon demonstrate, the presence of so-called jurisdictional issues is
not an exceptional circumstance justifying early recourse to courts.
[29]
Although said in a different context, factual findings
and the record compiled by an administrative tribunal, as well as its informed
and expert view of the various issues, will often be invaluable to a reviewing
court (Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54,
[2003] 2 S.C.R. 504) per Mr. Justice Gonthier at para 30.
[30]
Furthermore, the Commissioner has persuasive
power. It persuaded Environment Canada to release 99 pages even though the head
of that institution was not satisfied that they were responsive to Mr. Blank’s
request. She might likewise have brought about a change of heart with respect
to the redactions.
[31]
Consequently, there is no need to consider Mr.
Blank’s never-ending complaint that such solicitor/client privilege as there
might otherwise have been has been lost by fraud. To the extent that he has
already received at least one of the 99 pages in full in another Information
Request, the point is moot. It cannot be said that as a consequence the right
to redact other pages was lost. No such intention appears from the record. (Stevens
v Canada (Prime Minister), [1997] 2 FC 759, affirmed [1998] 4 FC 89; Blank
v Canada (Minister of Justice), 2005 FC 1551; and Blank v Canada
(Minister of Justice), 2006 FC 841).
IV.
The 1,250 pages
[32]
As to the other 1,250 pages in the offices of
Fillmore Riley, both Environment Canada and the Department of Justice maintain
the position that they do not fall within the four corners of his 2005 request.
This view is shared by the Commissioner. Mr. Blank submits that this decision
of Environment Canada is unreasonable.
[33]
I am not quite certain as to exactly what Mr.
Blank wants. He first asked for a search of the Winnipeg Offices of Environment
Canada, but now says he would be satisfied with production of the remaining
pages which were found in the offices of Fillmore Riley. If he seeks an order
that the Commissioner again review these documents, I can refuse it on the simple
ground that the Commissioner is not party to these proceedings. The Office of
the Information Commissioner is an independent office. It is not named as
respondent in this application, and is not represented by the Minister of
Justice.
[34]
However, there are more fundamental reasons to
dismiss this portion of Mr. Blank’s application for judicial review.
[35]
The position of Environment Canada is that there
is no record to produce. It must be a record of Mr. Woo dealing with Gateway
Industries Ltd or Mr. Blank on certain specified subjects. Consequently, there
has been no refusal to produce a record.
[36]
If, for the sake of argument, I were to indulge
Mr. Blank and take the position that the Commissioner’s investigation was
shoddy and incomplete, there still would be no recourse to this Court. We must
remember always that prior to the enactment of the Access to Information Act
Canadians did not have access to government records. Thus, the right of access must
fall within the Act.
[37]
This Court has no authority to challenge a
finding by the Commissioner, after investigation, that there is no record.
Although dealing with similar provisions in the Privacy Act, the
decision of Mr. Justice MacKay in Connolly v Canada Post Corp, 197 FTR
161, [2000] FCJ No 1883, is very much on point. He said at paragraph 10:
[10] The rights assessed under the Privacy
Act are those set out in that Act, and any redress for their contravention
exists by virtue of that Act. There is no common law remedy, and no remedy is
provided by the Act, for wrongly withholding publicly held personal information
from the person requesting it. There is no right to damages under the common
law or under the Privacy Act.
[38]
Mr. Connolly’s appeal was dismissed (Connolly
v Canada Post Corp, 2002 FCA 50, [2002] FCJ No 185 (QL)). As Mr. Justice
Noël, as he then was, said, at paragraphs 3 and 4:
[3] The appellant does not take issue
with the conclusion reached by MacKay J. Rather he submits that the Act ought
to be amended so as to allow the Court to review the manner in which government
institutions respond to information requests and to grant the appropriate
remedy where the institution is found to be at fault.
[4] This as we attempted to explain
to the applicant during the course of the hearing is a matter for Parliament,
and not one which we can entertain on appeal.
[39]
This Court has not been given jurisdiction to
review the Commissioner’s findings and recommendations (Canada (Attorney
General) v Bellemare, [2000] FCJ No 2077 (QL)).
[40]
To summarize, Mr. Blank’s application with
respect to the redacted pages shall be dismissed as being premature because he
did not complain to the Commissioner. The rest of his application shall be
dismissed as the Commissioner’s findings that there is no record cannot be
challenged in this Court.
V.
Costs
[41]
Although Mr. Blank’s right to seek records
pursuant to the Access to Information Act is not challenged (no argument
has been made as to proportionality), as he well knows there are consequences
if he is unsuccessful. There is no reason why costs should not follow the
event. Counsel for the Minister submitted a draft bill in accordance with our
current practice. It is based on Tariff B, Column III, which is the default
column. Disbursements are not claimed although they could have been. The draft was
based on the scheduled hearing of one and one half days. However, the hearing
took only one day.
[42]
In the circumstances, I shall fix costs at $11,270.
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